1. Fellow-Servant — Negligence — Section Gang.
Allegations that B. was foreman of a section gang to which plaintiff belonged, having power to employ and to discharge the hands subject to his control, and that he directed plaintiff to take a standing position upon a handcar upon which they were moving, and that while plaintiff was in that position, B., who was directing the movements of the car, permitted it to be run at a dangerous speed; and that while it was so running, without warning to plaintiff B. caused the car to be suddenly stopped, whereby plaintiff was thrown off and injured without fault on his part, show a cause of action for injuries so suffered, against the railway company................................................ 224
2. Vice-Principal.
The rule of vice-principal applies to any special business of the master which is carried on by a number of employes under charge of another with power to employ and discharge the servants employed in the particular business in which they are engaged..................... 224
3. Section Boss — Mode of Appointment.
It is immaterial through what agency the power of employing and discharging hands may be given to a section boss; the material thing is that he has such power. That such power was given through the roadmaster is of no consequence in a litigation by a member of a section gang injured through negligence of his superior, the section boss....................................... 225
4. Immaterial Error.
An erroneous charge can not be ground for reversal on complaint of the party favored by such charge. See example........................................... 223, 225
GAINES, ASSOCIATE JUSTICE.
After a careful examination of the record in this case, we conclude that the grounds of error alleged in the application for the writ can not be sustained.
The petition alleged, that Brooks was foreman of the section gang to which the plaintiff belonged, and that he had the power to employ and discharge the hands subject to his control; that he directed the plaintiff to take a standing position upon the handcar upon which they were moving, and that while plaintiff was in that position, Brooks, who was directing the movements of the car, permitted it to be run at a dangerous rate of speed; and that while it was so running, without warning to plaintiff, he caused the car to be suddenly stopped, whereby plaintiff was thrown off and injured, without fault on his part. This alleges negligence on part of the foreman in permitting the car to be run in a dangerous manner, and the absence of negligence on part of the plaintiff.
According to the averments in the petition, Brooks and plaintiff were not fellow servants. There is nothing either in the language or the reasoning in the opinion in Railway v. Williams, 75 Tex. 4, which leads to the contrary conclusion. It is true we there say, that "there are numerous cases which hold the employe who has charge of a special department of the company's business, with the power to employ the servants in his department, is not to be deemed the fellow servant of those under his control;" but it was not meant by this that the department of the business should necessarily be a principal one. We think the rule applies to any special business of the master which is carried on by a number of employes under charge of another, with power to employ and discharge the servants engaged in that business. We think the demurrer and exceptions to the petition were properly overruled.
We are of opinion, also, that it is unimportant that the power of employing and discharging hands exercised by Brooks was conferred upon him by the roadmaster. The material fact is that he had the authority; it is immaterial through what officer or agent of the company it was derived. It follows, that in our opinion there was no error in refusing the charge, the rejection of which is complained of as the second ground of the application.
The third assignment of error in this court complains that the Court of Civil Appeals erred in not sustaining the appellant's eleventh assignment in that court. That assignment complained of a certain paragraph in the charge of the court. Since we think that the Court of Civil Appeals properly disposed of that question in their opinion, it is unnecessary that we should add anything to what they have said as to that matter.
The judgments of the Court of Civil Appeals and of the District Court are affirmed.
Affirmed.
Delivered June 18, 1894.
Motion for rehearing overruled October 8, 1894.